News Analysis: Another Kind of Bitter Split
By LINDA GREENHOUSE (N. Y. Times)
WASHINGTON, Dec. 13 — The Supreme Court justices who drove off into the night on Tuesday left behind more than a split decision that ended a disputed presidential election. They also left behind an institution that many students of the court said appeared diminished, if not actually tarnished, by its extraordinary foray into presidential politics.
They point to the contradiction between the majority's action in this
case and those justices' usual insistence on deference to the
The members of the majority appeared at pains to refute any suggestion that the court had intervened unduly by stopping the Florida recount on Saturday or by ruling Tuesday that it could not resume. It was "our unsought responsibility to resolve the federal and constitutional issues" in the case, the majority said in its unsigned opinion.
And Justice Clarence Thomas, a member of the 5-to-4 majority, told a
group of high school students at the court today
that "I have yet to hear any discussion, in nine years, of partisan politics" among the justices.
"I plead with you that, whatever you do, don't try to apply the rules
of the political world to this institution; they do not apply,"
Justice Thomas said, adding, "The last political act we engage in is confirmation."
Be that as it may, the events of the last few days were jarring even
for people who pride themselves on being realists rather
than romantics about how the court works.
One federal judge, a Republican appointee who was a Supreme Court law
clerk decades ago, said today that he had
long since become accustomed to watching the justices "making it up as they go along." That aspect of the majority opinion,
which he called analytically weak and untethered to precedent, did not particularly bother him, he said.
"But the very peculiar aspect" of the case, the judge said, was "why they made it up." He added, "It just seemed so politically partisan."
Another federal judge, a Democrat with many close Republican ties, wondered
openly in conversation today about what steps
the Supreme Court could take to "rehabilitate itself."
The way the court structured and then released its opinion, just before
10 o'clock at night, added to the sense of unease. The
justices gave no hint of a reason for the unprecedented late-night release — whether to avoid pushing Florida over the
midnight "safe harbor" deadline for immunizing its electors from Congressional challenge, or perhaps out of fear that the
explosive and highly divisive decision might leak overnight if the court waited until morning to announce it. No matter. It resulted
in an hour or more of frantic confusion that the court did nothing to prevent or alleviate.
While the sight of network correspondents fumbling in the dark on the
court plaza to make sense of the decision was deeply
unsettling to viewers who urgently wanted to know whether the 2000 election was over, the fault this time was much more the
court's than television's. The 65-page document omitted the usual headnote, the synopsis that accompanies opinions and
identifies which justices voted on which side.
Furthermore, the opinion was labeled "per curiam," meaning "by the court,"
a label used by courts almost exclusively for
unanimous opinions so uncontroversial as to not be worth the trouble of a formal opinion-writing process. There was no
indication of what the vote actually was. The names of Justices Sandra Day O'Connor and Anthony M. Kennedy, one or both
of whom was likely the author, did not appear anywhere on the document.
Unlike the Florida Supreme Court, whose spokesman, Craig Waters, became almost a cult figure for his uninflected but informative announcements of the court's opinions in the election cases, the United States Supreme Court does not authorize its public information staff to make public statements or give any guidance about the decisions.
Since the justices themselves skipped the usual oral announcement of a decision, which takes place in public session in the courtroom and includes the opinion's author summarizing its main points, there was no interpretive guide at all for the correspondents who had to dash off to their waiting cameras. The crux of the per curiam opinion, the conclusion that there was no time to conduct any further counting of the votes in Florida, came deep inside and was highlighted neither at the beginning nor at the end.
Among the most baffling aspects of the opinion was its simultaneous creation of a new equal protection right not to have ballots counted according to different standards and its disclaimer that this new constitutional principle would ever apply in another case. "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," the court said.
Joseph Goldstein, a Yale Law School professor who died this year, wrote in his book "The Intelligible Constitution" that the members of the court "have an obligation to maintain the Constitution, in opinions of the court and also in concurring and dissenting opinions, as something intelligible — something We the People of the United States can understand."
Mr. Goldstein wrote: "That the Constitution be intelligible and accessible to We the People of the United States is requisite to a government by consent."
The justices will not meet again until Jan. 5, the date for their next scheduled conference to review new and pending cases. The passions and pain revealed in Tuesday's opinions will undoubtedly have cooled by then; these are justices who are accustomed to both bitter division — often by the same 5-to-4 alignment — and to moving on to the next case.
But there is something different about Bush v. Gore that raises the question about whether moving on will be quite so easy. This was something more than a dispute rooted in judicial philosophy. In fact, as Prof. Suzanna Sherry of Vanderbilt Law School said today, had members of the majority been true to their judicial philosophy, the opinion would have come out differently.
"In the past, the 5-to-4 decisions have been jurisprudentially predictable," Professor Sherry said in an interview. "Some justices are for more federalism, some for less; some for more activism, some for less. Those are not political decisions. By and large, the opinions are consistent with consistent jurisprudential beliefs" and as such present little threat to the court's collegiality.
But in this case, Professor Sherry said, for conservatives "the politics and jurisprudence were in conflict." The conservative justices in the majority set aside their concern for states' rights, for judicial restraint, for limitations on standing, for their usual insistence that claims raised at the Supreme Court level have been fully addressed by the lower courts.
"There is really very little way to reconcile this opinion other than that they wanted Bush to win," Professor Sherry said. Those who oppose the decision, she said, are likely to conclude not only that it was a mistake but "a different kind of mistake, not just that they got the law wrong but that it exposed a different side of the court."